Stopping 'Stop-Loss'

The federal 9th Circuit Court is coming to Seattle to hear the case of a National Guard soldier forced to stay on.

Emiliano Santiago was a high-school junior in Stanfield, Ore., when a National Guard recruiter came to his school. The recruiter impressed Santiago, the child of farm workers and a Mexican immigrant who had been in this country for five years. "I was really excited to see the uniform," says Santiago, now 26. "I wanted to wear the same uniform, to be a part of that."

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From a series of meetings with the recruiter, Santiago understood that serving in the National Guard was "a little off-side thing that you could do," almost guaranteed not to result in deployment. "The only reason the National Guard would get deployed is if there was, like, a World War III," Santiago remembers the recruiter telling him. Eighteen years old, he signed up for eight years and became a helicopter refueler for a unit based in Pendleton, Ore. He also got married, moved to Pasco, Wash., and became an electronics technician at a laboratory run by Battelle Memorial Institute for the U.S. Department of Energy.

On June 11, 2004, two weeks before Santiago's National Guard contract was due to expire, his platoon sergeant informed him that he was subject to the Pentagon's controversial "stop-loss" policy and would not be allowed to leave the Guard. Last October, months after his contract was supposed to have ended, the Guard ordered Santiago to report to Fort Sill, Okla., for training in preparation for deployment to Afghanistan. Santiago balked. Although he reported to Fort Sill as ordered and is there still, he's fighting the government in court.

On April 6, the federal 9th Circuit Court of Appeals will hear his case. It will be the highest level of court review for the so-called "stop-loss" policy, and Seattle will have a close-up view. The San Francisco–based court is meeting that day at the University of Washington law school, one of the periodic road trips the 9th Circuit takes.

The Guard's stop-loss policy has affected approximately 40,000 Army soldiers to date, according to spokesperson Lt. Col. Pamela Hart at the Pentagon. She says that the policy is needed for purposes of "unit cohesion" in battle, "so that soldiers who train together and deploy together stay together as a team. We learned our lesson from Vietnam. Having individual replacements come and go within units was extremely damaging."

But critics of the policy, including Republican Sen. John McCain of Arizona, consider it a "backdoor draft" used to make up for manpower shortages that the Army won't own up to. Antiwar activists have seized the issue. The local chapter of Military Families Speak Out, which seeks to bring the troops home, is planning a rally in support of Santiago outside his hearing.

Santiago himself does not appear to be a political guy. Speaking by phone from Fort Sill, he says he has no particular feelings about the military actions in Iraq or Afghanistan. "If I still had two years or one year left of my contract, I would say, 'I signed up for it, I'm in.'" To him, it's a simple question of fairness. "This is not right," he says. Army brass, he says, "are not doing what they told me they were going to do."

Making it all the stranger is that the Army presented him with a new contract that extended his service until 2031. Army spokesperson Hart says the date was arbitrary, meant to allow for "wiggle room." Says Santiago, looking at another 27 years in the Army over and above the eight he signed up for: "It's crazy."

His legal case revolves to a large extent around the contract he signed with the Guard. While Santiago says the recruiter never raised the possibility that his contract might be involuntarily extended, it was in the contract's fine print. The contract, however, enumerated "a limited number of specific circumstances," according to Santiago's legal brief. One was a "time of war or national emergency declared by Congress." The president has declared a national emergency, but Congress has not.

It's a somewhat technical point but not an insignificant one, contends David Ettinger, one of Santiago's lawyers. He notes that a formal congressional declaration of a national emergency is a rare event.

The government nonetheless argues that an enlistment contract is not the be-all and end-all, as if it were just any contract. "Enlistment in the armed forces does not constitute merely a bargain between two parties, but effects a change of status by which 'the citizen becomes a soldier,'" reads its brief. And, the Army notes, soldiers are governed by a number of federal laws. One such law says that "during any period members of a reserve component are serving on active duty . . . the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces. . . . "

Santiago's lawyers claim the language of the law means that the Army can only forcibly extend a soldier's contract if he or she is already serving on active duty, which was not the case with Santiago. The government counters that it is empowered to exercise its stop-loss policy as long as any members of the National Guard are serving on active duty.

A federal District Court judge in Oregon who heard the case, Owen Panner, agreed and ruled in favor of the government. Now it's up to the 9th Circuit.

Three weeks ago, Santiago's unit left for Afghanistan without him. Because of the case, the Army moved his date of deployment to two days after the hearing. Since the court rarely makes decisions that quickly, his lawyers are fighting that date by seeking a preliminary injunction.

Santiago says fellow soldiers have not given him grief about his refusal to go with them. In fact, he says, "everyone agrees with me." He provides them with regular updates about his case.